On November 18, 2011, Rep. Rosemarie Swanger (R-Lebanon) introduced legislation “[P]rohibiting the application of foreign law which would impair constitutional rights” in the Pennsylvania General Assembly.[1]

Critics, including the Council on American-Islamic Relations and the Anti-Defamation League, immediately criticized Swanger’s bill, noting that the bill’s language (which mirrors that of other states) would ostracize Muslims, Jews and other religious groups that may incorporate spiritual guidelines into contractual and family matters. Rep. Swanger, for her part, has disputed that her bill targets specific religious groups, or sharia law in particular.

However, an earlier letter, authored by Swanger in June which promoted the bill to her colleagues, cast doubt on her claims of impartiality.

“[I]ncreasingly, foreign laws and legal doctrines–including and especially sharia law–are finding their way into U.S. court cases,” she wrote. “Invoking shariah law, especially in family law cases, is a means of imposing an agenda on the American people.” [2]

In a later memo, issued in October, Swanger warned of “infiltration of foreign legal doctrine” but made no mention of sharia law specifically.

Specific or General Application

The Pennsylvania law neither mentions nor discusses sharia law. Rather, it generally forbids Pennsylvania courts or arbitrators from considering or interpreting any “foreign legal code or system which does not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges,” including the rights of due process, freedom of religion, speech, and the press, and a right of privacy or marriage, accorded under the U.S. and Pennsylvania constitutions.

Pennsylvania is not alone in introducing such laws. Along with the commonwealth, at least 20 other states have introduced similar legislation, while three states, Tennessee, Louisiana and Arizona, formally added model language akin to Pennsylvania’s to their books.[3] On November 2, 2010, Oklahoma voters went even farther, approving a proposed constitutional amendment that specifically prevents courts in Oklahoma from applying sharia law.[4]

(A recent 10th Circuit Court of Appeals ruling in January, however, struck the law down as being unconstitutional).[5]

The Case of the Contested Will

Although uncommon, U.S. courts, arbitration bodies and mediators have been called on to interpret foreign law in international commercial disputes, contractual matters, family law, and issues of intestacy. On some occasions, courts have also been asked to interpret Halakha (Judaic), Muslim, and Catholic doctrinal law, but most do so with trepidation, acknowledging the difficulty of balancing secular jurisprudence with the constitutional mandate separating church from state.

In the past, Pennsylvania courts have interpreted Jewish and Catholic canon law in cases relating to marriage and intestacy. However, Pennsylvania courts had not been confronted with issues of Sharia law until the 2010 matter of Alkhafaji v. TIAA-CREF.[6] Professor Abbass Alkhafaji left a will that divided his pension in accordance with “Islamic law”–providing a 1/8th share to his third wife, a 1/8th share to each of his six sons, and a 1/16th share to each of his two daughters. His former wife sued, challenging the drafting of the current will on the grounds that references to sharia law were invalid, and therefore, an earlier will / property settlement should be controlling.

The state court determined that the will included sufficient notice to effectuate the change in his policy, and that a division “in accordance of the law of Sharia,” was permissible. Beyond that, the court made little mention of Sharia, but did confirm that Pennsylvania law allows an individual to change the beneficiaries of a pension or insurance policy at a later date. Interestingly, had Dr. Alkhafaji simply designated the division of assets without mention of “Islamic law” — that is 1/8 shares to his wife and sons, and 1/16 shares to his daughters–the court could have settled the matter without even addressing religious overtones.

Thus, as it is with many matters of legal consequence, it was the language, and not some deeper belief that was in dispute. The case is currently being challenged on appeal.[7]

The model language, which was created by the American Public Policy Alliance (http://publicpolicyalliance.org/?page_id=170), is known as “American Laws for American Courts,” does not mention Sharia law explicitly, and has not faced the same sorts of challenges that more directed legislation has.↵

Unlike Pennsylvania, the Oklahoma amendment modifies the state constitution by explicitly forbidding Oklahoma courts from “considering or using international law … [or] considering or using Sharia Law.”↵

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Carey N. Lening, Esq. is a solo practitioner, writer, and lecturer who is devoted to legal issues relating to technology, security & privacy, social media, and intellectual property. She writes on areas ranging from business data privacy and security to the legislative changes affecting privacy, copyright, and trademark law. Ms. Lening received her Juris Doctorate from Pierce Law Center of Concord, NH. Prior to opening her practice, Ms. Lening was a journalist for BNA’s Patent, Trademark & Copyright Journal. - Email Carey Lening